(Cross-posted from Warming Law, which focuses on covering and analyzing the fight against global warming from a legal perspective. My name is Sean Siperstein, and I run Warming Law as part of my work for Community Rights Counsel, a non-profit, public interest law firm that assists communities in protecting their health and welfare. Follow the links for more info. about Warming Law; about CRC’s work and history; and for those truly curious, about me. Thanks for the opportunity to join the discussion; I really look forward to it!)

On Thursday, Rep. Henry Waxman (D-CA) convened the House Oversight and Government Reform Committee to delve into whether the EPA acted properly in approving a permit for a coal-fired power on tribal land in Utah—its first such decision since the Supreme Court’s determination that CO2 is an air pollutant—despite the continued opposition of several environmental groups. Readers can check out the committee’s website for complete video of the fireworks-filled hearing and all testimony.

The hearing’s central witness was EPA Administrator Stephen Johnson, who testified that because EPA is still in the process of formulating regulations in response to Mass. v. EPA, CO2 is, for the time being, still not a "regulated pollutant" under the Clean Air Act—and thus, EPA "simply lacks the legal authority…to impose emissions limitations for greenhouse gas emissions on power plants."

Under intense questioning, Johnson continued to stand by his basic talking points, arguing again that EPA’s failure to regulate CO2 keeps it from even beginning to consider it in assessing proposed power plants. Reporting on the hearing, Ryan Grim of the Politico parses Johnson’s testimony and sees something beyond legal reasoning possibly at play here:

Johnson has a tight line to walk: He has to show that he’s in compliance with the Supreme Court ruling while not committing to doing too much. “I have to abide by the law as it’s written today,” Johnson says.

He also thinks that “we must continue to improve our knowledge of the science,” but promises that the EPA is “developing regulations to pursue it from a regulatory standpoint” using a “deliberative and thoughtful process.”

Democrats aren’t buying. “No, you’re not,” Rep. John Tierney (D-Mass.) tells him flatly. “You’re looking for any avenue you can to avoid doing it.” Several Democrats bring up the EPA’s long-running refusal to approve a waiver for California to enact its own carbon regulation scheme.

The primary argument against Johnson’s take was provided by David Doniger of the National Resources Defense Council (NRDC), who asserted that EPAdoes have a mandate to move forward, and in doing so should have quickly concluded that new coal-fired plants ought not be approved without significant mitigation strategies. In doing so, Doniger cites several decisions by businesses and state regulators indicating that concrete action is possible, and summarizes the four main arguments of environmental organizations’ latest formal comments objecting to EPA’s decision:

As a result of the Supreme Court’s determination, in Massacuhsetts v. EPA, that the Clean Air Act is "unambiguous" on CO2’s status as a pollutant, CO2 is "plainly a ‘pollutant subject to regulation’ under the Act. This should trigger Section 165(a)(4) of the Act, which requires that the permit "include an emission limit reflecting the Best Available Control Technology (BACT) ‘for each pollutant subject to regulation.’"

Even putting aside the Court’s ruling, CO2 isalready a "regulated" pollutant for this purpose under the Clean Air Act Amendments of 1990, which require utilities to monitor, record and report CO2 emissions.

Even in the absence of a BACT limitation for CO2, Sections 165(a)(4) and 169(3) of the Clean Air Act require that EPA consider other environmental impacts during its BACT analysis for "conventional pollutants (such as sulfur oxides and nitrogen oxides)"; this requirement should force consideration of global warming, which would certainly qualify as an important environmental consideration, yet EPA has "refused to undertake even this critical analysis in connection with issuing air permits for new coal plants."

Under Clean Air Act 165(a)(2), which deals with public comments, the agency is required to weigh comments on factors including air quality impacts, potential alternatives to the proposed plant, and control technology requirements; it also has the power to consider these factors even if they are not raised in public comments. Properly conducted, such a process would find a wide range of available alternatives to allowing conventional new coal plants, but yet again, EPA has failed to even conduct this analysis.

Rep. Waxman also used the hearing to introduce legislation that would essentially settle the issue, creating a temporary moratorium on the approval of new coal-fired plants until EPA finshes developing its regulations .

without new, next-generation coal-fueled plants, Kansans will be captive to high-priced natural gas, allowing hostile foreign countries to control the energy policy of Kansas and America. We are already held hostage to some of these same countries for oil.

Following the precedent of Massachusetts vs. EPA, Roderick L. Bremby, Secretary of the Kansas Department of Health and Environment, announced today that he is denying air quality permits to the Sunflower Electric Power Corporation for the construction of two 700-megawatt coal-fired electric generation plants.

I believe it would be irresponsible to ignore emerging information about the contribution of carbon dioxide and other greenhouse gases to climate change and the potential harm to our environment and health if we do nothing.

The Sunflower project was projected to release an estimated 11 million tons of carbon dioxide annually.

Aug. 11, 2005: Sunflower Electric Power Corporation announces plans to build two new, 600-megawatt coal-fired power plants next to its existing 360-megawatt plant outside Holcomb. Its partner is Tri-State Generation and Transmission Association Inc. of Westminster, Colo. The project has been five years in development.

Feb. 6, 2006: Sunflower submits a preliminary application to the Kansas Department of Health and Environment for an air-quality permit for three 700-megawatt coal-fired power plants outside Holcomb. The project also includes a bioenergy center to capture carbon dioxide and use it to grow algae that can be converted into biofuels.

June 1, 2006: After discussions with KDHE staff, Sunflower finalizes its permit application.

Sept. 26, 2006: The Sierra Club’s Kansas chapter asks Gov. Kathleen Sebelius to impose a moratorium on the construction of new coal-fired plants and appoint a commission to study their potential environmental effects.

Oct. 24, 2006: KDHE has a hearing on a proposed permit for Sunflower in Garden City, drawing almost 100 people.

Oct. 26, 2006: The Sierra Club’s attorney in Kansas predicts KDHE will grant the air-quality permit because Sunflower’s project is seen as important economic development. KDHE has a hearing in Topeka, drawing about 120 people, including many critics of the project.

Nov. 16, 2006: KDHE holds the last of three hearings on the project in Lawrence, where opponents have been vocal. It draws about 270 people.

Dec. 15, 2006: The attorneys general of California, Connecticut, Delaware, Maine, New York, Rhode Island, Vermont and Wisconsin protest the project. In a letter to KDHE, they say allowing the plants will undermine their states’ efforts to control greenhouse gas emissions. The U.S. Fish and Wildlife Service also protests, saying the project could affect visibility around Wichita Mountain National Wildlife Refuge in southwest Oklahoma, fears later allayed.

Feb. 2, 2007: The Kansas House’s Energy and Utilities Committee tables a bill that would impose a two-year moratorium on the construction of new coal-fired plants. The move prevents the bill from being considered further.

April 2, 2007: The Sierra Club sues KDHE in Shawnee County District Court, trying to force it to hold another hearing on Sunflower’s project.

April 5, 2007: Tri-State, Sunflower’s partner in the project, announces that it is putting plans for the third, 700-megawatt coal plant at Holcomb on hold. Tri-State says its projections show it won’t need as much new power as quickly as previously thought.

May 17, 2007: Raymond and Sarah Dean, environmentalists from Lawrence, file a lawsuit against KDHE in Shawnee County District Court, hoping to force it to regulate carbon dioxide emissions.

June 18, 2007: Sunflower notifies KDHE that it is dropping its request to build the third new coal plant outside Holcomb.

Aug. 30, 2007: Sebelius tells The Wichita Eagle’s editorial board that she personally opposes Sunflower’s project but will leave the decision on the permit to KDHE Secretary Rod Bremby.

Sept. 24, 2007: Attorney General Paul Morrison advises Bremby that state law gives him the authority to declare CO2 a hazard to the environment and public health and deny Sunflower’s permit based on its potential carbon dioxide emissions. Morrison issues his legal opinion at Bremby’s request.

Oct. 3, 2007: Republican legislative leaders, frustrated by what they see as delays in Bremby issuing Sunflower’s permit, form a special committee to examine the permitting process.

Oct. 9, 2007: The legislative committee has its first hearing and members question Bremby. He acknowledges that his staff recommended approving Sunflower’s permit, but the department later says that advice reflected technical issues.

Judge William Sessions III issued his ruling in 2:05-CV-302 Green Mountain Chrysler-Plymouth-Dodge et al v. Crombie et al, a case in which the American Automobile Manufacturers sued the state of Vermont to block regulations adopted by Vermont in the fall of 2005 that follow’s California’s Pavley Law greenhouse gas emissions standards for new automobiles. Following the Supreme Court’s Massachusetts vs EPA decision that made it clear EPA has authority to regulate greenhouse gases, Sessions ruled in full for Vermont, stating:

History suggests that the ingenuity of the industry, once put in gear, responds admirably to most technological challenges. In light of the public statements of industry representatives, history of compliance with previous technological challenges, and the state
of the record, the Court remains unconvinced automakers cannot meet the challenges of Vermont and California’s GHG regulations.

2:30 Boxer The time to act is well overdue. This is one of the steps the president and EPA administrator to take to demonstrate they will take action to fight global warming. The administrator will appear before this committee on June 21. EPA has granted CA a waiver 40 times in the past years. It has never denied a waiver. The president signed an executive order calling for interagency coordination on any action involving global warming. It may just be an instrument of delay.

I say the California waiver is ripe for action.

2:38 Inhofe As a rule I support states' rights. Air pollution knows no boundaries. The Clean Air Act for all its imperfections has led to cleaner air. The problem is that the state has not made much progress complying with existing federal laws. It is in violation with federal particulate standards, the same with ozone. When I introduced legislation to tighten penalties for counties not in compliance with pollution laws I found that California is the only state not complying with federal law. My bill is not a climate bill, it's a serious attempt to rein in the worst polluters. It is the height of hypocrisy for California to be the tail that wags the dog. The global warming we are now experiencing is part of a natural cycle. According to the NOAA over the last two decades California has cooled by .06 C. If Russia's top scholar scientist is correct that the world is entering a cooling phase then California is leading the world.

2:43 Boxer We have asked for extensions to deal with Clean Air Act because, you may not know, we have 37 million people. I don't think the word "grandstand" has any meaning at all. I don't think our attorney general is grandstanding, nor the governor, nor the legislature.

You can look at our energy use, while we have had an amazing energy use standard. I want to make it clear here that since my state has been attacked head on that noone here is grandstanding.

2:46 Lautenberg This "hoax" is taking over place after place after place. We're here today because the EPA has once again failed to act in the face of science. Last year was the hottest year on record and this year is going to be even hotter. California has been courageous and leaderly in what their going to do with global warming and New Jersey is right there with them. If all the wiavers were granted, 14 million metric tons of carbon reduced by 2020, the equivalent of 12 million cars off the highway. The committee is working to curb global warming. Sen. Sanders is working to cut emissions by 80% by 2050. I hope I won't have to keep running in 2050. Madame Chairman, don't relent.

2:48 Inhofe I would have to say, if we're talking polar bears, the population has doubled in the last 50 years. The thing is interesting that every day, more scientists that were strongly on your side, Claude Allegre, David Bellamy that were strongly on your side are now reevaluating the science.

Lautenberg How can you face every day knowing that catastrophes are happening to children's health? The are those who will continue doubting what is in front of their eyes and what reputable scientists are finding.

2:51 Boxer There are always a few people who say that the world is flat and that HIV doesn't cause AIDS and cigarettes don't cause cancer. It isn't about winning. It's about reality. And as long as I hold the gavel reality will govern this committee.

2:53 Brown Soot and ozone are exacerbated by warming climates. This waiver was signed into law by President Nixon. We're looking at the same problem. California has unique environmental conditions. I was at the hearing this morning. The technological and legal case is overwhelming. I am hoping the EPA administrator will grant the waiver. If he doesn't we will sue him.

3:00 Grannis This morning New York State called on the administrator to grant the waiver as soon as possible. The deabte over climate change is over. Global climate change is everyone's problem.

3:04 Markey Today we will hear about economic opportunities ina green economy. We know that "green collar" jobs are growing and having an impact on the economy. Ethanol has created 155,000 jobs. That is just a fraction of the economic growth the green economy promises.

Sensenbrenner Republicans know something about creating jobs. One question I would like answered today is what exactly a green collar job is. Mr. Jones is dedicated to creating more jobs and for that he is to be commended. I think it is important to distinguish between jobs that create new technology and those which play a supporting role. I am worried that by creating big government programs for so called green-collar job training we are just duplicating the private sector's efforts. Is intalling a solar panel fundamentally different from installing a satellite dish? I am happy that Jerome Ringo of Apollo Alliance is here.

Boxer I say, Mr. Adler, your argument is very weak.

Brown I believe he misstates the law. NITSA has no authority over the Clean Air Act. In Mass. vs. EPA the Supreme Court expressly held that the Clean Air Act runs in parallel with (some other law). When we look at compelling and extraordinary some is that California has always been out in front. It is the general condition that is compelling and extraordinary. Not each individual waiver. Even if you do, greenhouse gases contribute to warming and exacerbate soot, ozone. There's another standard that even if the EPA isn't regulating a standard. If auto companies twenty years ago had made more fuel efficient cars we would have less global warming. If you look at the train of consequences you make the compelling case that by California's action or inaction we affect global warming.

Adler Because climate change is a global phenomenon California does not have distinct needs. I don't think it's an open and shut case. But I do think there are grounds for the EPA to deny the waiver. Notr do I think that if they were to grant the waiver it would ncessarily stand up in court.

It establishes that if California is to regulate greenhouse gases it must apply for a waiver. When we're looking at preemption of state law the Supreme Court decision noted that these obligations may overlap. If a federal standard overlaps with a state standard that would be grounds for preemption.

Inhofe I've always contented the IPCC is very political. On the other hand when the IPCC came out downgrading the estimates of sea level rise they cut this in half in the worst case scenario. In the same month they're downgrading the sea level rise they're downgrading the level of contribution from human activity, saying the contribution from livestock outweighs the transportation sector. Unless we're absolutely certain we're right I don't want to pass what would amount to a huge tax increase.

3:36 Grannis We don't think we're nuts. Clearly this is an issue of national importance.

Lautenberg We see it in marine ecology, we see it in the loss of coral.

Grannis The spawning seasons for striped bass are changing. It all adds up.

Brown California doesn't have to say that the compelling reason has to be unique to California. Number two as climate goes up the criteria pollutants get worse. We're on very solid ground. In the Massachusetts case the minority said that the damage to Massachusetts was so trivial Massachusetts didn't have standing to sue. The majority did. The standing will be judged by the majority. You're right. Depending on the Supreme Court. Very clearly, Scalia and Thomas said what they think, which is why it matters who will be the next president.

3:39 Whitehouse We're one of the EPA 12, logjammed by the EPA. I know Adler said two months is a fast time for the EPA to act. But the EPA has sat on its hands for years. The backside of Mr. Adler's argument is that this isn't a local problem but this is a problem for our species. The arguments that were made in our favor in Mass v. EPA were not frivolous arguments. They were not nonsensical arguments. Indeed, they prevailed. The idea that the EPA has to start from a cold-standing start, I'm not willing to give the EPA a pass on how long it takes. They could have run on parallel tracks. There is no reason for them to be hiding behind the skirts of bureaucratic delay. I can't tell you haow frustrating it is. I regret the position you're taking, Mr. Adler.

Adler That's never been EPA's practice. Congress has forced action when it feels EPA is moving too slow. At the end of day, if urgent action is needed, Congress can move much more quickly. I'm not going to defend that system. That is the norm. That is what is set up. I can give examples where EPA lost years ago and still haven't taken action.

Whitehouse I'm not comforted by the argument they could be slower.

Boxer That's a ridiculous argument. Excuse me for being so blunt. You can shake your head all your want. If the EPA were true to its mission instead of the Environmental Pollution Agency under this administration. The fact is if an agency is dedicated to its mission, what it used to be like under Republican and Democratic administrations, each day it works to help the American people.

I'm just going to close this and make a few points. Global warming is real. There's 100% agreement that it's real by the world's leading scientists. They're 90% certain humans are the cause. If a doctor told you your child had 90% chance of having cancer and an operation would cure that child you would act. And all the leading doctors agreed. This isn't a rush job. The waiver was requested in 2005. I read that Supreme Court decision. It's plain English. It's pretty clear. They chastised this administration. I will send a signal to Mr. Johnson if Mr. Johnson uses this as a platform and says he is granting the waiver I would leave this podium and give him a hug.

This is a bipartisan issue. Only here it's not. Everyone has said this is a challenge, we're not afraid of it, we're going to act in a neighborhood we call California. And for those who say they champion states' rights to block our efforts is at the very least hypocritical. I will save my stronger language for another day.

Mr. Adler, I appreciate you coming here. Even though you were wrong.

So many years ago when Mr. Brown was governor he started a solar panel initiative. In the 70s he said we have to do more to be energy independent. So thank you for your eloquence and the committee stands adjourned.